The Author, Anish Bachchan is a law student at Amity Law School, Noida.
Article 19(1)(a) of the constitution of India gives the right to freedom of speech and expression[1]. In other words every citizen has a right to freedom of speech and expression i.e. he has the right to express his point of view in any manner and he shall not be discriminated by anyone in the civil society. If his fundamental right is infringed then he can seek remedies through Article 32 that is right to constitutional remedies.[2]
At the same time Article 19(2) has given reasonable restrictions to the right to freedom of speech and expression so that the position of the sovereign does not become vulnerable[3]. But in the current Covid World Order, this restriction is thrown out of the window when both the traditional media and the social media starts playing the role of the Supreme Court and starts making judgements on a person who has done anything unconventional or unprecedented. It won’t matter whether he is innocent or not in respect to the evidence, he or she will be the prey of the vultures of the media trial.
In this current era where patriotism has been perverted into the means to gain clout, TRP[4] or views on YouTube or where people are attacking a celebrity’s girlfriend just because she was smoking weed with him, the media trial has given only nightmares and bothersome to the judiciary, which affects the latter in its work.
This article will talk about the recent trends regarding the recent developments freedom of speech and expression as well as the rise of media trial in India. It will also give the context of patriotism and the support of the bandwagon in the current era of both the internet and television.
Recent developments of freedom of speech and expression
In the 1950s United States, freedom of speech has been replaced with the fear of communism thanks to the contributions of Joseph McCarthy. Anyone who is a suspected communist either loses his ostracized by the society.[5] The current era of both the television and the internet has brought the new wave of Joseph McCarthys where a person who has done anything which is not accepted by the masses even though it was a mere opinion has been attacked, online lynched, character assassinated or in worst case ostracized by the society.
- One example is the Agrima Joshua incident where Agrima who was a comedian allegedly made a joke about Shivaji Maharaj when in reality she was calling out on people who were making ridiculous stories on Quora. Even though it was an old clip her set was destroyed by the mob and then an internet personality Subham Mishra gave her rape threats over a joke. Although the latter was arrested by the Vadodara police[6], it shows how the mob has stooped so low over a joke.
- Another example is the internet feud of PewDiePie vs T-Series. This feud is over the subscribers on YouTube. PewDiePie who was the most subscribed channel on YouTube was facing T-Series a company which was catching up fast. PewDiePie in return made some diss track where he joked about India, its people and its condition, (not to mention he made a video called ‘You India You Lose[7]’ where he was actually criticizing the Indian soap operas) because of this, his diss tracks were banned by the Delhi High Court[8]. Although PewDiePie fans were attacking Indians through racist means where PewDiePie himself called them out for it, people who supported T-Series also brought patriotism in this otherwise ridiculous feuds sending death threats and attack messages to PewDiePie and his fans. Indian YouTubers like Saiman Says has also got death threats for his support to PewDiePie and he also says that Indian YouTubers who supported PewDiePie have also got threats because of this[9]. Woh Awesome Ladka has pointed out how youtubers are making money in the name of patriotism and how people are unnecessary attacking PewDiePie even though they don’t either vote or donate to martyred soldiers[10]. Both channels eventually made 100 million subscribers, (T-Series surpasses PewDiePie to become the most subscribed YouTube channel) and PewDiePie called off the feud in the aftermath of Christchurch shooting in New Zealand[11]
Although these are just two examples but it just gives an insight of how freedom of speech and expression has not only been ignored but also been abused by the people as long as it benefits them.
Freedom of the press also comes under the Right to Freedom of Speech and Expression. In simple words it says that like the citizens, the press has the right to express its views regarding certain issues under Article 19(1)(a) and they are also bound by the restrictions under Article 19(2)[12]. In Indian Express Newspaper vs. Union of India[13] it was held that freedom of the press has three elements:-
- Freedom to access to all sources of information.
- Freedom of publication.
- Freedom of Circulation.
Although it is not a problem, that media should express its views on the certain topics. The problem arises only when the media becomes the judge, jury and executioner instead of doing their jobs as providing information. This came to be known as the media trial.
Concept of Media Trial
Media Trial by concept means the coverage of the person’s reputation by making a person guilty regardless of the verdict given by the law.[14] In other words it’s just media trying so hard to be the Supreme Court of India in a nutshell and starts making judgement regardless of judiciary’s verdict.
- The Jasleen Kaur case is an example of media trial, where a girl falsely accuses a person for sexual harassment on her Facebook post and the media reached the verdict that that the person is the pervert of Delhi without even listening to the guy’s story and when the court acquitted the latter because the girl hasn’t appeared in the proceedings and the credibility of the post on Facebook has been questioned, the damage was already done because of the girl’s action and the media’s role in it.[15]
- Another example is the Rhea Chakraborty incident, where the TRP vultures of the media attacked Rhea Chakraborty, her character and her dignity in the aftermath of Sushant Singh Rajput’s demise. Rhea was the deceased actor’s girlfriend and a modern day communist pariah in media trial’s McCarthyism. The fact that she was his girlfriend and she takes drugs like weed says it all in the eyes of media and the mob. When she was called by the Narcotics Control Bureau for investigation, on the way there she was harassed by the media and they were even getting closed to her violating her space. She was also getting ton of hate and threats online and because of this people are questioning the morality of the case.[16] [17]
This guilty before proven innocent mentality that the media shows not only affects the person mentally but also emotionally, and in some cases even suicide. What will they do when Rhea Chakraborty does something worse to herself ? Will the media take responsibility for their acts and responsibilities.
Patriotism and Bandwagon
In the current ear where people like Hindustani Bhau gives death and rape threats to women and girls in the name of patriotism and his fans does the same to them explains why people need to realize that there is no need to show patriotism everywhere and every time.[18]
Patriotism means the love for one’s own country.[19] The Indian Army is the prime example for patriotism in India. Their sacrifices against the enemy should be respected and it gives a reason why every citizen should love it’s country. The Fundamental Duties mentioned in Article 51-A is another of how a citizen should contribute to his or her country[20]. This even solidifies by the quotes of the US President John Fitzgerald Kennedy, who said-“Ask not what your country can do for you, ask what you can do for your country”.
Unfortunately this beautiful word has been twisted, perverted and been taken out of context by Bollywood, celebrities, YouTubers, internet personality and of course media. Their main intention is to use patriotism just so they can advance their own interest like clout, money, recognition, views on YouTube and so on. This is also followed by the bandwagon, where people support something which is popular[21]. In other words… People just jump the gun without even understanding the concept.
In the context of media, patriotism has been used by the media to gain TRP. It is really unfortunate that they misuse it just so they can get a buck.[22] Section 124A of the Indian Penal Code talks about sedition.[23] If someone does something which harms the government then he or she will be filed by this section.
Ever since the Kanhaiya Kumar sedition case[24] the word anti-national has been overused and over-saturated by media trial. The worst part is people just call anyone who has the dissent towards the majority an anti-nationalist.
For example, a person named A criticizes the government regarding one of their policies, say for example The Citizens Amendment Act 2019[25]. If the criticism regarding the government offends the media then they’ll do everything to paint the guy as anti-national without any judicial proceedings or a verdict. Media’s judgement becomes the stone and the people will eat it up. A will be attacked by the mob and will be ostracized by the society. Or worse they’ll just give the judgement that A should give up his citizenship and go to Pakistan. Why someone give up his or her citizenship just because he criticized a government policy ?
It is really unfortunate that Patriotism has become an opportunity for media to get TRP and attack on a person or a group of persons who make a simple critique about the government.
Remedies against Media Trial
- Article 19(2) acts itself as a necessary restriction on right to freedom of speech and expression (including freedom of the press) so that the sovereign’s position does not become untenable.[26]
- Section 499 and 500 of IPC talks about defamation, where a defamed person whose reputation has being harmed can file the defamation suit against the accused. If a person is held guilty by the court then he will receive the punishment of 2 years of imprisonment.[27]
- Section 228a of IPC talks about punishing the person with 2 years imprisonment for revealing the names of the public as seen in Nirbhaya rape case and Hyderabad rape case.[28][29]
- Section 354C of IPC talks about voyeurism which punishes a person with imprisonment for 3 years and 7 years for repeated offense if he takes a photo of a woman without her consent.[30]
- Section 3(1) of the Contempt of Court Act, 1971 exempts any publication or distribution of publication which disrupts the work of the judiciary.[31]
- Section 2(c) of the Contempt of Court Act, 1971 defines criminal contempt which talks about the publication which disrupt judicial proceedings and creates a scandal.[32]
- The 200th Report of the Law Commission talks about the Trial by Media- Free Speech vs Media Trial under Criminal Procedure[33].
- Article 304 and 21 of the Constitution of India gives a person a right to free and fair trial. This was well explained in the case of Maneka Gandhi vs. Union of India.[34] Article 39A talks about right to free legal aid to provide justice to poor and weaker sections of society.[35]
- In 2017, the Supreme Court hints at ending the media trial according to Chef Justice JS Khehar shows concerns regarding media trial.[36]
Conclusion
Media is the 4th pillar of democracy, but the media trials has proved it otherwise for some people because of their recent atrocities. In a democracy, media is suppose to be the provider of information and not the court itself. Because of this, the judiciary must act as a deterrent against the media trial so that they won’t misuse their influence, power and privilege to destroy someone’s life. The freedom of speech and expression should be protected by both the judiciary and the constitution so that every citizen shall have the right to express their opinions regarding certain issues in the country without being called out names by anyone including the media.
References:
[1] https://www.lawctopus.com/academike/freedom-of-speech-and-expression
[2] https://byjus.com/free-ias-prep/right-to-constitutional-remedies/
[3] https://cis-india.org/internet-governance/blog/free-speech-and-public-order-1#:~:text=Article%2019(2)%20of%20the%20Constitution%20authorises%20the%20government%20to,into%20its%20component%20parts%2C%20and
[4] What is TRP and how it is calculated?- https://timesofindia.indiatimes.com/What-is-TRP-and-how-it-is-calculated/articleshow/11816.cms
[5] https://www.britannica.com/topic/McCarthyism
[6] https://www.google.com/amp/s/www.indiatoday.in/amp/india/story/comedian-agrima-joshua-stand-up-comedy-chhatrapati-shivaji-statue-shubhammishra-1699784-2020-07-12
[7] https://youtu.be/Q6M255BZ0HU
[8] https://www.google.com/amp/s/www.thehindu.com/sci-tech/technology/internet/battle-of-the-bans-in-india-pewdiepies-diss-tracks-pubg-and-tiktok/article26912395.ece/amp/
[9] https://youtu.be/7TRIU-dQks0
[10] https://youtu.be/aOJGiJKOGXU
[11] https://www.google.com/amp/s/www.businessinsider.com/pewdiepie-stop-subscribe-to-pewdiepie-meme-after-christchurch-shooting-2019-4%3famp
[12] http://www.legalservicesindia.com/article/217/Freedom-of-Press-In-India.html
[13] https://indiankanoon.org/doc/1157189/
[14] https://blog.finology.in/recent-updates/media-trials-in-india
[15] https://www.google.com/amp/s/www.newindianexpress.com/nation/2019/oct/26/jasleen-kaur-case-sarvjeet-acquitted-after-four-years-netizens-demand-apology-from-kejriwal-arnab-2053322.amp
[16] http://www.legalserviceindia.com/legal/article-4082-online-harassment-and-the-rise-of-social-media-trial-and-online-witch-hunt.html
[17] https://www.google.com/amp/s/theprint.in/opinion/newsmaker-of-the-week/indians-find-a-perfect-villian-in-rhea-chakraborty-it-says-more-about-india-than-her/477359/%3famp
[18] https://youtu.be/2dS2unSZqww
[19] https://plato.stanford.edu/entries/patriotism/
[20] https://www.moes.gov.in/content/fundamental-duties
[21] https://www.merriam-webster.com/dictionary/bandwagon
[22] https://www.google.com/amp/s/m.thewire.in/article/media/indian-tv-medias-blatant-endorsement-of-hyper-nationalism-is-shameful/amp
[23] https://m.timesofindia.com/india/what-is-sedition-law-explainer/amp_articleshow/73168127.cms
[24] https://www.google.com/amp/s/m.economictimes.com/news/politics-and-nation/delhi-government-gives-nod-for-prosecuting-kanhaiya-kumar-and-two-others-in-jnu-sedition-case/amp_articleshow/74399758.cms
[25] https://www.google.com/amp/s/m.economictimes.com/news/et-explains/citizenship-amendment-bill-what-does-it-do-and-why-is-it-seen-as-a-problem/amp_articleshow/72436995.cms
[26] https://www.google.com/amp/s/blog.ipleaders.in/should-freedom-speech-expression-limits/amp/
[27] https://www.google.com/amp/s/www.gktoday.in/gk/civil-defamation-and-section-499-500-of-ipc/amp/
[28] https://www.google.com/amp/s/wap.business-standard.com/article-amp/current-affairs/to-name-the-rape-survivor-or-not-how-ipc-s-section-228a-is-often-misread-118091000074_1.html
[29] https://indiankanoon.org/doc/1696350/
[30] https://devgan.in/ipc/section/354C/
[31]https://indiankanoon.org/doc/1121027/#:~:text=(1)%20A%20person%20shall%20not,of%20justice%20in%20connection%20with
[32] https://indiankanoon.org/doc/1737746/
[33] https://www.google.com/amp/s/www.thehindu.com/opinion/Readers-Editor/Freedom-of-the-press-and-fair-trial/article16301300.ece/amp/
[34] https://indiankanoon.org/doc/1766147/
[35] https://www.google.com/amp/s/www.firstpost.com/india/free-legal-aid-is-crucial-right-granted-by-constitution-scs-sts-women-among-categories-of-people-eligible-for-provision-7034801.html/amp
[36] https://www.google.com/amp/s/m.economictimes.com/news/politics-and-nation/supreme-court-hints-at-end-to-media-trial/amp_articleshow/57028827.cms
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